Re DH (A Minor) (Care Proceedings: Evidence and Orders)
| Jurisdiction | England & Wales |
| Judgment Date | 1994 |
| Date | 1994 |
| Court | Family Division |
Wall, J
Care proceedings – supervision order – child victim of Munchausen Syndrome by Proxy – assaults by mother – interim care order made – child placed with father – residence order made in favour of father – whether court could also make supervision order in relation to child's contact with the mother.
Child – victim of Munchausen Syndrome by Proxy – assaults by mother – interim care order made – parents separated – whether mother should be allowed supervised contact with child.
Evidence – covert video surveillance – evidence so produced admissible – doctor of view that covert video surveillance essential for treatment of child patient – parental consent not required.
Evidence – expert instructed by a party – that party not wishing to rely on expert's report or to call expert – duty to disclose report – another party or guardian ad litem entitled to call expert or the expert treated as witness of the court.
Evidence – medical expert – second or updated report to be disclosed to parties and court without delay.
Supervision order – local authority bringing care proceedings but opposed to making of supervision order – whether the court nevertheless had power to make supervision order.
The parents were married in 1990 and they had one child, a boy born on 20 January 1992. Towards the end of 1992 the mother suffered mood swings and the marriage came under
strain. The parents separated in January 1993 and were divorced in December 1993.
In December 1992 the child was taken to hospital by the parents as he had suffered a suspected apnoea attack. This occurred whilst both parents were present and the incident was not precipitated by the mother. The child made a rapid recovery and at the hospital nothing was found to be wrong.
On 4 January 1993 the mother telephoned the father at work and insisted that he take her and the child to the hospital. He did so. At the hospital the child did not seem unwell but was admitted. He and the mother were placed in a cubicle. In the early hours of 5 January the doctor was called because the child was said to have stopped breathing. He recovered, tests were carried out, and nothing abnormal was found. There were similar episodes of apnoea on 6, 8 and 9 January.
The consultant paediatrician suspected that the child might be the victim of Munchausen Syndrome by Proxy and arranged for the mother and child to be transferred to another hospital. This was done on 11 January. Further episodes of apnoea occurred on 15 and 20 January. On 25 January 1993 the mother and child were transferred to a specialist unit where covert video surveillance was available.
The maternal grandmother had regularly visited the parents' home, had taken a large part of the care of the child, and a strong bond existed between the grandmother and the child. Between 4 and 9 January 1993, whilst the mother and baby were at the first hospital, the grandmother began to suspect that the mother was injuring the child. On 9 January she told the father of her suspicions but he refused to believe it. However, after the move to the second hospital on 11 January both the grandmother and the father spoke to the consultant paediatrician at that hospital. The doctor told them that it was probable that the mother was inflicting the injuries but that it was important that they did not tell the mother of the hospital's suspicions. When the mother and child were transferred to the specialist unit so that covert video surveillance could take place the father's permission for such surveillance was not sought.
The mother refused to go to the unit, which was a long way from her home, unless the grandmother accompanied her. The grandmother agreed and went with her. She was a nurse and, from what she had been told, knew that the mother would be under covert video surveillance.
On 27 January 1993 the child suffered two further assaults by the mother which were recorded on the video. One assault took place at around 2.30 am but the recording was not very clear so surveillance continued. The second assault was at 11.47 am. The mother was seen to place an object over the child's face and hold it there for six seconds. She then took it off. The child was crying and thrashing about.
The mother was interviewed by a doctor and handed over to the police. She was charged with cruelty to a child, pleaded guilty, and placed on probation for three years with a condition on psychiatric treatment.
On 27 January 1993 the local authority obtained an emergency protection order from the local family proceedings court; care proceedings were begun; and interim care orders were made. The child was, at first, placed with an aunt: the father's sister. The local authority refused to allow the mother or the grandmother to have contact with the child. On an application to the family proceedings court the mother was refused contact but an order for contact with the grandmother was made.
In May 1993 the case was transferred to the High Court. At a hearing in August 1993 an interim order for the mother to have supervised contact was made.
In July 1993 the child was placed by the local authority with the father and had lived with him ever since.
Held – (1) A residence order would be made in favour of the father. So far as contact between the mother and the child was concerned, the evidence of the consultant forensic psychiatrist who was treating the mother was that the mother was suffering from a personality disorder which was "eminently treatable", though the treatment would take a considerable time. The evidence indicated that the mother had not yet come to terms emotionally with what she had done. Her motivation for the assaults on the child was highly complex but the fact that they only occurred in hospital was probably significant. The medical evidence relating to the mother showed that there was a prospect of her rehabilitation taking place with the consequent enhancement of the possibility of the rehabilitation of her relationship with the child. The evidence further showed that supervised contact posed no risk to the child. Also, there was a strong psychiatric case made out, from the child's point of view, in his maintaining contact with his mother, not so that she could play a maternal role, but so that she did not become a frightening fantasy figure and with the realistic prospect that his relationship with her could in due course be rehabilitated. In all the circumstances, continuing supervised contact between the mother and the child would be in the child's best interests. It would be ordered that the mother should have supervised contact with the child on six occasions during 1994 and that there should be a review of contact in January 1995. Although it was submitted that it was contrary to the principle of the Children Act 1989 for the court to retain a supervisory role by ordering a review of contact after 12 months, there were some cases where, in the interests of a particular child, continuing involvement was necessary. The instant case was such a case. Although the evidence showed that it was currently in the child's interests to have continuing contact with the mother, the position might not be the same in 12 months' time especially having regard to the fact that there were question marks over the mother's response to treatment.
(2) This case involved difficult medical issues relating both to adult and child psychiatry. A psychiatric overview from a child psychiatrist in 12 months' time would be of material assistance. Further, there should be from the guardian ad litem a broad reassessment of the medical and legal aspects of the case. In these circumstances this would best be undertaken by the official solicitor. Therefore, the official solicitor would be appointed as the child's guardian ad litem if he consented. If he did not consent, the current guardian ad litem would continue.
(3) The maternal grandmother had behaved impeccably in the child's interests throughout his life. She was a very important figure in the child's life and he would benefit from regular contact with her. It would be ordered that she have contact not less than once every three weeks. This order stated the minimum amount of contact and the father and grandmother would be able to make their own arrangements as to the length and frequency of visits. However, having regard to all the circumstances, the grandmother's contact would, for the time being, be supervised by the father.
(4) By s 11(7) of the Children Act 1989 the court could not make supervision by the local authority a condition of contact. However, by s 31 of the Act a supervision order could be made if the child was likely to suffer significant harm attributable to the care likely to be given to him if the order were not made not being what it would be reasonable to expect a parent to give him. Under that provision the court could make a supervision order combined with a residence or contact order where it was satisfied that but for the supervision order the child would be likely to suffer significant harm attributable to the care given to him by either of his parents. Therefore, the terms of s 31 did not prevent the making of a supervision order in the circumstances of the present case. It was in the child's interests to have contact with the mother. But if that contact was not professionally supervised there was currently a likelihood of significant harm to the child and the
likelihood of significant harm was attributable to the care, or lack of it, which was likely to be given to the child by the mother if a supervision order was not made. On the facts in the present case the terms of s 31 of the 1989 Act were fulfilled and on the language of the section there was no impediment to the making of a supervision order. Nevertheless, it would not be appropriate to make a supervision order under s 31 where the object was merely to achieve contact supervised by the local authority. Further, as had been made clear...
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